South African Secrecy Bill kept at bay, for now

South African journalists and civil society
groups were uneasy this month amid rumors that the Protection
of State Information Bill, commonly known as the Secrecy Bill, would pass
the Upper House of parliament, the last step before a presidential signature.
Since 2008, journalists and civil society have lobbied
against the bill, which many fear would spell the end of investigative
journalism. A number of these fears have been alleviated by nearly 200
amendments to the draft since its inception, according to the communications
director of the ruling African National Congress's (ANC) parliamentary caucus, Moloto Mothapo.

Crucial concerns, however, remain. As the
bill currently stands, the security minister could classify documents without
any obligation to record the reasons for doing so. And ultimately the minister
would control the classification review panel that would determine applications
to declassify documents. "Our main concern is: who can classify, what you can
classify and how you can appeal it," Alison Tilley, director of the Open Democracy Advice Centre, told
me during a mission of press freedom groups to Cape Town last week. "We are not
opposed to the law's function to classify documents but the burden of proof
should be on the authorities to prove why they are doing it." (A press release from the groups who
participated in the mission can be read here).

Fears of classification for reasons other
than national security are not unfounded. Last year alone, roughly 350
documents were curiously classified by the Department of Higher Education,
Murray Hunter, national coordinator of the free expression organization Right 2 Know, told me.

While the security minister would have an
easy road to classifying information, journalists would have to navigate a
confusing road map to access such documents. "There is no direct means to
appeal the classification of documents," Tilley said. Further, any citizen who
possesses, shares, or disseminates information the government deems classified
could face lengthy prison sentences. As the bill stands, the state could
prosecute anyone who downloaded secret South African cables from, say, Wikileaks,
and impose a potential 25-year prison sentence. Worse, the ANC backtracked recently and re-instated to
the bill minimum
prison sentences of 15 years for such offenses. "The maximum sentences are
far, far too severe and we want these minimum standards removed," opposition
party Democratic Alliance MP Alfred Lees, a
member of the committee reviewing the bill, told us.

Those who possess or disclose classified
documents for purposes of exposing corruption "or other unlawful act or
omission," would be exempt from prosecution, according to the ANC's chief whip,
Nosipho Ntwanambi. But the key concession journalists are seeking--a clause
that would exempt leaks in the name of safeguarding the public interest--was
rejected because "you do not see it applied in other countries across the
world," said ANC MP and Justice Chair Llewllyn Landers. (While it's true that
public interest clauses are not widespread, observers in South Africa told me,
other countries generally don't have such broad classification powers nor such
harsh punishments for possessing and disseminating classified documents.)

Still, the ANC has made some concessions,
such as modifying the original draft of the bill to minimize the number of
offices in the security department allowed to classify information.

All sides of the debate agree that a new
law is needed to classify state secrets and replace the apartheid-era 1996 Minimum
Information Security Standards (MISS). Landers explained to the press
freedom mission how a government delegation had visited East Germany and saw
that declassifying information was a terrible experience for some who lived
under the Stasi regime. "Finding that their own brothers and sisters had
sometimes turned against them--it could cause so many family problems. We too
have an ugly past, and have a large body of information [that] we could not
simply say: here it is."

Opposition parties in the Upper House as
well as some individuals within the ANC are determined to battle on until the
bill is amended further. "There has been a group within the ANC who are really
concerned over the bill and have made considerable efforts to ameliorate this
legislation, but we are seeing pushback from the Department of State Security,"
Tilley said.

Some local observers suspect the ANC's
effort to pass the bill may be due to the politicization of the intelligence
services and their efforts to stop leakages of information. "We have seen in
the last four years a systematic creeping of encroachment of politicization of
institutions," Democratic Alliance MP Lees said. Preventing an over-reaching
ANC party is one reason why opposition Inkatha
Freedom Party MP Prince M. Zulu is also opposed to the secrecy bill, he
said.

With so many critical voices in parliament,
our fears of the bill passing this month seem unfounded. Mothapo agrees. "The
Protection of State Information Bill is changing all the time. There's little
chance it will pass this month at least," he said.

[Reporting
from Cape Town, South Africa]

Tom Rhodes is CPJ's East Africa representative, based in Nairobi. Rhodes is a founder of southern Sudan’s first independent newspaper. Follow him on Twitter: @africamedia_CPJ